Considering the Constitution

May 11

Labour MP J.S. Woodsworth, soon to become the CCF’s first leader, reacts to the recently-held Imperial Conference, which would eventually produce the Statute of Westminster recognizing the dominions’ legislative independence – save for Canada since the federal and provincial governments could not determine an amending formula for the British North America Act:

Let me urge: if we are not impotent, let us be the fathers of something. The fathers of confederation differed from the men about them in that they were willing to take a chance on a change. A precedent is merely the method by which someone makes an escape from an impossible situation. It is time we set a few precedents in this house.

I have not time to discuss the legislation of other dominions, but I would simply remark they have the right to amend their constitutions; why has not Canada a similar right? Either we are a nation or we are not a nation. If we are a nation we should have the right to change our constitution.

Justice Minister Hugh Guthrie responds:

The rights of the provinces of the country are just as plenary, just as high as the rights of this parliament. Can this parliament, therefore, by amendment or alteration of any kind, interfere with the rights which are specially set apart as matters of provincial jurisdiction and provincial concern, without the consent of the various provinces of Canada? Many of the questions which have been brought to the attention of the house tonight by the hon. Member for Winnipeg North Centre are questions upon which the provinces of Canada maintain that they have exclusive jurisdiction. Can we then, without their consent, amend or alter the constitutional act of this country in respect of such questions? I submit that we cannot.

June 30

Independent MP Henri Bourassa, known for his nationalist views, discusses Quebec’s role in constitutional reform and his impatience at seeing South Africa and other dominions gain more independence:

There is just one point I wish to emphasize in the interests of my own province and in the interests of national unity and equity. I have never yet let it be stated or insinuated that the province of Quebec is so forgetful of its sense of responsibility and of nationhood, that because of its timidity it would block the exercise of the sovereign will of the Canadian nation.

---

Of course the province of Quebec, and I think other provinces as well, will resist any encroachment on the part of the federal parliament over what has been acknowledged and practised for sixty years as the undoubted rights of the various provinces; but I think also in all those matters which are common to the whole nation ... I should not like to see my province which has been in the vanguard for fifty years be now in the rearguard...I feel somewhat ashamed to find that in the year 1931 the Dominion of Canada is in the rearguard of all the dominions in the exercise of full-fledged autonomy.

July 1

Prime Minister John Diefenbaker explains why his proposed Bill of Rights applies only to areas under federal jurisdiction and does not amend the BNA Act:

I am dealing particularly with the national field, for the bill of rights is entirely within the jurisdiction of the federal parliament. It covers only those matters which under the division of powers are allocated to the federal parliament and thereby in no way will it impinge upon or infringe the absolute powers provided by section 92 and one or two other sections of the British North America Act.

Immediately the question will be asked, why did not the British North America Act include a bill of rights? A reading of the discussions that took place at that time and the conclusions arrived at, indicates that many o those who became fathers of confederation were of the opinion that these fundamental rights would never be infringed nor invaded by any parliament; that they had become embedded not only in the experience of generations in Britain but had become part and parcel of the thinking of the people in a parliamentary democracy constructed on the basis of parliamentary government.

Their hopes or their expectations did not eventuate.

---

They say it can be repealed at another session. Certainly it can.  Habeas corpus is a statute of the United Kingdom which has remained on the statute books now for approximately 160 or 170 years. The bill of rights was a statute enacted in 1691. They have never been changed, because experience has shown that once these declarations are made subsequent governments and parliaments are most careful not to interfere with the rights and liberties embodied in those statutes.

As far as constitutional amendment is concerned, it is impossible of attainment at the time.

Harold Winch (Vancouver East, B.C.): Why?

Mr. Diefenbaker: Simply because of the fact that the consent of the provinces to any interference with property and civil rights cannot be secured. That is no criticism of any province. The rights under the constitution which pertain to the federal parliament and the provincial legislatures and affect both have been found in the light of experience to be unamendable, as things are and have been.

They say this will be limited only to dominion jurisdiction. I realize that, but in reply I say it will at least represent the essence of the conscience of the people of Canada.

July 4

Liberal Leader Lester B. Pearson criticizes the Progressive Conservative government’s plan to pass a Bill of Rights in Parliament:

Freedoms are not guaranteed by words, even words in a constitution, let alone by words in an ordinary, normal act of parliament. Earlier as well as contemporary history is littered with the wreckage of high-sounding declarations and bills of rights which were to guarantee so very much and last forever ... Incorruptible and respected courts enforcing laws made by free men in parliament assembled and dealing with specific matters, with specific sanctions to enforce their observance; these are the best guarantee of our rights and liberties. This is the tried and tested British way, and this is a better course to follow than the mere pious affirmation of general principles, to which some political societies are attached.